Additional Comments by the Australian Greens

Referral

1.1
On 12 September 2016, the Senate referred the following matters to the
Legal and Constitutional Affairs References Committee for inquiry and report.

Terms of Reference

1.2
The serious allegations of abuse, self-harm and neglect of asylum
seekers in relation to the Nauru Regional Processing Centre, and any like
allegations in relation to the Manus Regional Processing Centre, with
particular reference to:

(a) the factors that have contributed
to the abuse and self-harm alleged to have occurred;
(b) how notifications of abuse and
self-harm are investigated;
(c) the obligations of the
Commonwealth Government and contractors relating to the treatment of asylum
seekers, including the provision of support, capability and capacity building
to local Nauruan authorities;
(d) the provision of support services
for asylum seekers who have been alleged or been found to have been subject to
abuse, neglect or self-harm in the Centres or within the community while
residing in Nauru;
(e) the role an independent children's
advocate could play in ensuring the rights and interests of unaccompanied
minors are protected;
(f) the effect of Part 6 of the
Australian Border Force Act 2015;
(g) attempts by the Commonwealth
Government to negotiate third country resettlement of asylum seekers and
refugees;
(h) additional measures that could be
implemented to expedite third country resettlement of asylum seekers and
refugees within the Centres;
(i) any other related matters; and
(2) the committee be granted access to
all inquiry submissions and documents of the preceding committee relating to
its inquiry into the conditions and treatment of asylum seekers and refugees at
the regional processing centres in the Republic of Nauru and Papua New Guinea.[1]

Executive Summary

1.3
This report comprises comments and recommendations made in addition to
the Committee’s majority report.

1.4
The Committee’s majority report makes recommendations that would, if
implemented, significantly improve conditions for detainees in Australia’s
offshore RPCs. However the Australian Greens believe that the preponderance of
evidence presented to the committee supports a finding to close the detention
facilities on Manus Island and Nauru and bring to Australia all detainees,
including children born to detainees on Nauru.

1.5
The Committee heard shocking evidence from a range of submitters and
witnesses of appalling and unacceptable conditions in Australia’s offshore
Regional Processing Centres (RPCs), and a systemic failure of the Australian
government to adequately respond.

1.6
Evidence presented to the Committee confirms that the conditions in
Australia’s offshore RPCs amount to torture as defined in the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.

1.7
Evidence presented to the Committee confirms significant levels of
abuse, including sexual abuse, of detainees including children. Evidence was
also presented that incident reports have been systemically downgraded,
potentially to avoid financial penalties being levied on contractors.

1.9
The establishment and management of Australia’s offshore RPCs are a
shameful chapter in Australia’s national story.

1.10
In order that adequate reparations are made, including a national
apology, a Royal Commission should be held into the establishment, management
and impact of Australia’s offshore RPCs.

1.11
Australia’s RPCs on Manus Island and Nauru are inhumane, non-compliant
with Australia’s international obligations, and should immediately be closed.
All people there, including people currently living outside the centres, should
be offered the opportunity to come to Australia immediately, provided with
refugee status and offered adequate support help them try to repair the harm
that has been done to them by Australia, and in Australia’s name.

Recommendations

Recommendation 1

1.12
Regional Processing Centres on Manus Island and Nauru should be closed
immediately and all detainees immediately brought to Australia and offered
resettlement in Australia as refugees.

Recommendation 2

1.13
The policy of mandatory indefinite detention for people seeking asylum
who have arrived in Australia by boat should end.

Recommendation 3

1.14
A Royal Commission should be held into the establishment and management
of the Regional Processing Centres on Manus Island and Nauru, and the
associated Australian government policy of boat turnbacks.

Recommendation 4

1.15
Children born on Nauru to detainees should be brought to Australia with
their families and guaranteed the right to citizenship.

Recommendation 5

1.16
Further studies should be urgently conducted regarding the extent of
legacy cadmium disposal on Nauru, and the threat to human health and the environment.

Recommendation 6

1.17
All detainees on Nauru should immediately be tested for elevated levels
of cadmium and other heavy metals present at or near the site of the Nauru
Regional Processing Centre, and appropriate medical advice sought and followed.

Recommendation 7

1.18
Comcare’s investigation into alleged breaches of the Work Health and
Safety Act 2011 (Cth) (WHS Act) by the Minister of Immigration and Border
Protection should be expedited.

Recommendation 8

1.19
The Senate Legal and Constitutional Affairs References Committee should
conduct an inquiry to examine the merits of the government’s claims of public
interest immunity made during the course of this inquiry.

Recommendation 9

1.20
Given the committee's concerns about the level of accountability and
transparency that currently applies to the operation of Australia’s Regional
Processing Centres in the Republic of Nauru and Papua New Guinea, the following
matter should be referred to the Legal and Constitutional Affairs References
Committee for inquiry and report by 28 March 2019:

conditions at the Regional Processing Centres in the Republic of
Nauru and Papua New Guinea;

the provision of support services for asylum seekers and refugees
who have been alleged or been found to have been subject to abuse, neglect or
self-harm in the centres or within the community while residing in Nauru and
Papua New Guinea;

attempts by the Commonwealth Government to negotiate third
country resettlement of asylum seekers and refugees;

additional measures that could be implemented to expedite
appropriate third country resettlement of asylum seekers and refugees within
the centres;

the presence of cadmium in the Republic of Nauru, and the health
risks associated with prolonged cadmium and phosphate exposure;

the implications of Australia's intention to ratify the Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment;

transparency and accountability mechanisms that apply to the
Regional Processing Centres;

measures Australia could take to develop and implement an
appropriate and sustainable regional approach to how the arrival and settlement
of asylum seekers is managed in the Asia-Pacific region;

any other related matters; and

the committee be granted access to all inquiry submissions and
documents of the committee's previous inquiries relating to the conditions and
treatment of asylum seekers and refugees at the regional processing centres in
the Republic of Nauru and Papua New Guinea.

Conditions

Torture

1.21
The conditions in Australia’s Regional Processing Centres (RPCs) on
Manus Island and Nauru for refugees and asylum seekers amount to torture.

1.22
Australia became a signatory to the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in
1985, ratifying the Convention in 1989. Torture is defined in article 1 of the
Convention against Torture as follows:

Any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions.[2]

1.23
The Convention against Torture places a duty on states to ensure that
all acts of torture are criminalised, as well as any attempt to commit torture
extending to persons who are complicit or who participate in the torture.

1.24
The Australian Greens agree with Amnesty International's position that
the conditions on Nauru amount to torture as defined by the United Nations.

1.25
The Committee heard from Dr Neistat, a Senior Director of Research with
Amnesty International that:

Essentially torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted to obtain
information from, punish or coerce the person being subjected to the suffering
of a third person.

One is that, as I described earlier, refugees on Nauru do
experience severe mental and, in many cases, physical suffering. The second
factor is that the suffering is being intentionally inflicted. The whole system
is designed to inflict suffering, and the system is essentially set up, paid
and fully provided for and designed by the government of Australia. It is done
with a very clear purpose: to punish the individuals who are attempting to
arrive in Australia, but, even more importantly—and, in some of the comments
following our report, the government officials who did speak to the media did
not even hide the fact—to deter others from seeking asylum in Australia.

So suffering is being inflicted. It is being inflicted
systematically and it is being inflicted with a very specific purpose. These
elements described in quite a lot of detail in our report, allowed us to come
to a conclusion that this amounts to torture.[3]

General Conditions

1.26
The Australian Greens share the deep concerns of the Australian College
of Mental Health Nurses (ACMHN) who stated that:

While they may have left held detention, these individuals
remain severely restricted in their movement - they cannot leave the Island,
they cannot be re-united with their family and have little or no prospect of
economic and/or social participation. Many have given up hope and openly talk
of killing themselves as a way of bringing an end to their suffering and excruciating
distress and despair.[4]

Violence and Sexual Assault

1.27
The Committee heard from multiple sources that refugees and asylum
seekers living on Nauru are routinely exposed to violence, harassment and
intimidation from local Nauruan communities and have limited recourse to
justice through the Nauruan justice system.

1.28
The Committee heard evidence that refugees were being subject to the
following forms of violence (this list is not exhaustive):

throwing of bottles or stones;

swerving vehicles in the path of refugees and asylum seekers as
the walk or ride on motorbikes;

1.29
Ms Lamoin, head of Policy and Advocacy at UNICEF Australia highlighted
serious concerns over the capacity for the Nauruan police to investigate incidents,
especially in relation to '...gender-based violence claims and sexual assault'.[5]

1.30
Human Rights Watch told the Committee that refugees and asylum seekers
have reported that '...local police make little or no effort to investigate
attacks against them, even in cases where the victims were able to clearly
identify the perpetrators'.[6]

1.32
Human Rights Watch met men haunted by the deadly violence they
experienced in February 2014 when security personal and local men armed with
guns and machetes stormed the centre, threatening and beating the residents.[8]

1.33
Gay men and men who are perceived to be gay on Manus Island face greater
discrimination and harm. Asylum seekers have informed Human Rights Watch that gay
men are either shunned or sexually abused or assaulted and used by other men.[9]

1.34
Refugees and asylum seekers who have been brought to Australia for
physical, surgical or mental health treatment or after rape or assault are
required to return to Manus and Nauru to be considered for resettlement. This
is creating severe fear and anxiety among these people.

Health and the Lack of Adequate Medical Care

Dengue fever outbreak

1.35
On 15 March 2017 the Committee heard evidence detailing an active outbreak
of dengue fever on Nauru. At this time, 34 cases of dengue fever were reported
as follows:

1.36
Figures may not represent refugees living in the Nauruan community who
did not have access to International Health and Medical Services (IHMS)
clinics.[11]

1.37
The Committee heard evidence from Dr Rudolph, the Area Medical Director
for IHMS, that dengue fever can lead to serious health complications and death.
He stated:

It can be very serious. It can kill people. It is a febrile
illness; it has fevers. It can affect the major organs, causing inflammation in
major organs such as the brain, liver and so on. One of the serious things that
happen is that it depletes the platelets in the blood, which are involved in
clotting. It can deplete them so low that people can bleed spontaneously. They
can either bleed into the bowel or bleed into organs, and that can be a very
serious situation.[12]

Cadmium contamination

1.38
The Australian Greens are highly concerned about the potential impact of
elevated cadmium levels on the health of refugees and asylum seekers as well as
on RPC staff.

1.39
It is clear the Australian Government was aware of the risk of elevated
cadmium levels before the establishment of the Nauru RPC, yet they still chose
to send asylum seekers and refugees to that site.

1.40
The 2012 Sinclair Knight Merz (SKM) Environmental Due Diligence Report
for the then-Department of Immigration and Citizenship (DIAC) outlined the
potential risks of establishing a Regional Processing Centre in Nauru. These
risks included:

the presence of a cadmium "slime" dump near Buada
Lagoon which was identified by Nauru in their National Environmental Management
Strategy (1996);

phosphate dust containing cadmium being deposited into clean
water storages or storm water drains;

inhalation of phosphate dust particle containing cadmium and
potentially other heavy metals by construction workers, operational staff and
clients of the project; and

a long term threat to ground water as a result of possible
cadmium contamination.[13]

1.41
The SKM report further notes that the Nauruan National Environmental
Management Strategy (1996) states ‘further studies need to be carried out
regarding the extent of the threat of cadmium disposal to human health and the
environment’.

1.42
The Australian Greens are concerned that the studies recommended in
Nauru’s National Environmental Management Strategy (1996) and highlighted in
SKM report were never undertaken.

1.43
The Australian Greens are highly concerned that the levels of cadmium
remain unknown and refugees and asylum seekers on Manus are yet to be tested
for elevated levels of cadmium in their bodies.

1.44
Dr McLisky the Secretary of Doctors for Refugees (DFR) gave told
Committee that it is possible that cadmium could enter the bodies of refugees
and asylum seekers living on Manus and Nauru. Dr McLisky stated:

We do know that cadmium is a substance which can become toxic
in humans and we do know that it can enter the body through the alimentary
tract—through food—and also through inhalation of particles. So this is an area
of concern.[14]

1.45
Dr McLisky also provided evidence that cadmium can adversely effect
those exposed including kidney damage and bone problems. He stated:

Cadmium does deposit within the body and stay there for a
very long time. It is excreted by a number of methods but, once you accumulate
a lot of it, it is relatively difficult to get out of your body.[15]

1.46
The Australian Greens are extremely concerned that IHMS remain unwilling
to test refugees and asylum seekers on Nauru for elevated cadmium levels:

Senator McKIM: Isn't it the case that the cadmium
contamination on Nauru is because it was a phosphate mine and therefore the
dust in the RPC may be a way which is leading to elevated cadmium levels in
detainees?

Dr Seevnarain: Just to make it known, our recommendation has
been for there to be extensive environmental studies to study the level of dust
contamination in that setting. It is a very specific scientific process by
which you go about determining the constituents of dust and stuff like that.

Senator McKIM: Have you recommended that every detainee be
tested for their cadmium levels?

Dr Seevnarain: Not at this point.

Senator McKIM: Why not?

Dr Seevnarain: The aim of health surveillance is to try and
understand the end organ disease or what the levels are at that point.

Senator McKIM: Isn't it just to keep people healthy?

Dr Seevnarain: Not if it has been the exposure but, yes, that
maybe.

Senator McKIM: I will just be very clear here. If people are
getting contaminated with cadmium simply because they are on Nauru, would that
be concerning to IHMS?

Dr Seevnarain: As responsible medical providers, it is of
concern but to jump to the assumption that everybody there is currently being
exposed to cadmium and at a level—[16]

1.47
The Australian Greens have heard evidence that many refugees and asylum
seekers are on Nauru are anxious about their potential exposure to high levels
of cadmium.[17]

1.48
The Australian Greens believe that all refugees and asylum seekers on
Nauru should be immediately tested for elevated cadmium levels and receive
appropriate health care.

Delayed testing and treatment

1.49
Delayed medical testing and treatment is causing the unnecessary pain,
suffering and anxiety among refugees and asylum seekers. Lives are being put at
greater risk.

1.50
The Australian Medical Association (AMA) submitted a case study of a man
who was hit on the back of the head with a machete and had to wait nearly a
month to receive a scan as his condition worsened:

The AMA was told he has a background of torture in Iran but
was functioning well on Nauru. Since arriving on Nauru he had married another
asylum seeker. On Saturday, 5 March 2016 [name redacted], was apparently
attacked by two locals and was hit on the back of his head with a machete, a
wound that required stitching. The AMA was told [name redacted] suffers from
worsening headaches, repeated vomiting, nausea, confusion, dizziness, tired
eyes and weakness; that he does not sleep or eat properly and was urine
incontinent. The AMA was later told remains in a foetal position on his bed,
unable to be left alone.

On 9 April 2016 [name redacted] had a CT scan, and was told
that there was a broken bone in the centre of his skull. The AMA was advised
that this diagnosis was later revised to suffering from a mental illness. The AMA
had been told [name redacted]’s condition continues to deteriorate and that his
wife was advised by a mental health doctor that they could not help [name
redacted] anymore and would recommend electric shock treatment.[18]

1.51
The AMA provided the Committee with case studies of other delayed
treatment including the case of a refugee or asylum seeker who had been
experiencing ever worsening pain and bleeding for two years before receiving
medical testing. A polyp was found in his large intestine and there were
indications it may have been carcinoma.[19]

1.52
The Committee heard that delays in medical transfer to Australia often
occurred as a result the transfers needing to be 'facilitated by the Department
of Immigration'.[20]

1.53
Dr Rudolph the Area Medical Director for IHMS told the committee that
four out of eight refugees and asylum seekers waiting for medical transfer from
Manus Island to Australia waited for longer than medically recommended. Dr
Rudolph also told the committee that 12 out of 20 asylum seekers and refugees
from Nauru waited longer than medically recommended for medical transfer to
Australia.[21]

1.54
The Australian Greens are concerned the Department of Immigration and
Border Protection (the department) does facilitate transfers within a medically
recommend timeframe and often has to be prompted or reminded to IHMS to
transfer refugees and asylum seekers in need of medical treatment in
Australia. Dr Rudolph told the committee:

What we tend to do is that after a particular time we
resubmit the request as a sort of reminder to the department, and with some
cases we discuss it at particular complex case meetings with the department's
clinical team.[22]

1.55
Confidential submissions to the committee also detailed wait times
beyond form transfer to Australia beyond what was medically recommended. This
often caused the asylum seeker or refugee seeking medical attention increased
pain and anxiety.

Mental health

1.57
The Royal Australian and New Zealand College of Psychiatrists (RANZCP)
stated that, 'self-harm and suicidal behaviour have subsequently become endemic
in immigration detention facilities'.[24]

1.58
The Castan Centre for Human Rights Law submitted the following:

The death of Omid Masoumali and horrific injuries suffered by
Hodan Yasin demonstrate the extremes of suffering borne of hopelessness and
desperation in these environments.[25]

1.59
The Committee heard extensive evidence proving that mental health
outcomes worsen the longer a person is held in detention and that the longer a
person is in detention the more likely they are to develop a mental illness.[26]

1.60
The RANZCP highlighted that the 'prolonged uncertainty created by a
system of indefinite detention is a major factor in increasing hopelessness and
mental deterioration'.[27]

1.61
The Australian Greens are deeply concerned that the involuntary
separation of families increases the risk of, or exacerbates mental illness.

1.62
The Australian Psychological Society submitted that:

Family separation (involuntary) between the mainland and
offshore detention facilities and in other countries further contributes to
poor psychological outcomes in both parents and children, including risk of
self-harm.[28]

Trauma

1.63
Adults and children seeking asylum are likely to be recovering from
significant instances of trauma before they enter a RPC. Past trauma and mental
illness is a known risk of detention.

1.64
The Australian Greens hold grave concerns that refugees and asylum
seekers are being forced to remain in locations where they experienced
traumatic events. Traumatic events include rapes, assaults and witnessing
traumatic incidents.

1.65
The AMA provided evidence of a case study of a man who had witnessed the
murder of Reza Barati. His symptoms included the following:

1.66
The Australian Greens are deeply concerned that the trauma being
experienced by refugees and asylum seekers on Manus and Nauru will continue to
affect their health even decades after their experience in an Australian RPC.

1.67
The ACMHN submitted the complex trauma experienced by asylum seekers on
Manus Island and Nauru is likely to have long-term impacts, they stated:

The term 'complex trauma' describes multiple kinds of
adversity and overwhelming life experiences. The cumulative effects of this
type of trauma are pervasive and represent major risk for lifelong physical and
mental illness, poor quality of life and even premature death (MHPOD 2011)xi.[30]

Treatment of and response to poor
mental health

1.68
Refugees and asylum seekers commonly receive inadequate treatment and
inappropriate responses when presenting with for mental health problems. This
puts their lives and wellbeing at greater risk.

1.69
The Australian Greens are deeply concerned that the mental health of
refugees and asylum seekers is not being accounted when they first arrive at
the RPCs on Manus Island and Nauru. The RANZCP submit that:

The initial health assessments conducted in the 48 hours
after boat arrival do not include assessment of mental health or developmental
status.[31]

1.70
IIHMS, who provide health services to Australia’s RPCs have responded to
the submission of the Royal Australian College of General Practitioners (RACGP)
as follows:

We appreciate the care with which this statement has been
made, and the difficulties drawing conclusions without firm data. However we
would comment that we are not aware of any suicides in Nauru or Manus Island
over the last three years. One death (which was reported as possible suicide in
the media) was from unknown causes. The other was a man who set himself on fire
as a form of political protest, with what appears to be an accidental death
ensuing.[32]

1.71
The Committee heard concerns as to whether incidents were being
systematically downgraded to avoid fine or action. The Committee heard from Mr Paul
Stevenson, a psychologist on Manus and Nauru from July 2014 to July 2015 as an
employee of PsyCare that he:

...witnessed via email, transcripts of incident reports and
personal experience a 30 per cent systematic downgrading of incidents
categorised as critical to incidents categorised as major and minor.[33]

1.72
The RANZCP's submission included a case example of an incidence being
downgraded. They submitted the following:

On 29 January 2015, an asylum seeker on Nauru repeatedly
expressed a desire to die to a case manager, who responded by encouraging the
individual ‘to think of something positive that she enjoyed prior to detention
and to do this everyday to improve her well-being’ (Guardian, 2016). The case
was subsequently downgraded from a ‘minor incident’ to ‘information’ only.
Reminding an individual of ‘positive’ things in their past is not an
appropriate way of managing someone’s current risk of suicide. Furthermore, the
downgrading of an incident of suicidal ideation to ‘information’ only raises
some questions about the capacity for regional processing centres to
appropriately recognise and respond to mental health issues.[34]

1.73
While the Mr Grant Hehir, the Auditor-General, told the committee that
they had not seen evidence of reports being systematically down graded, he did comment
the department had poor record keeping methods, saying:

Poor record keeping was a feature of this audit.
Record-keeping standards are set under the Archives Act as well as by the
department's own policies. The department's performance in this regard was
substantially below requirements. Quality records are essential for effective
management, not only to ensure day-to-day operations are effective but also to
allow lessons to be learnt and accountability frameworks to operate.[35]

1.74
The Australian Greens are concerned with the inconsistency between the
number of incident reports provided by the department, and Transfield. Dr
Ioannou, Group Executive Director at the Australian National Audit Office told
the committee 'Overall, DIBP held 8,009 records as incidents and Transfield
held 12,104'.[36]

1.75
Dr Loannou also told the Committee that:

...we did document in a factual way in appendix 2 of the report
the various performance reporting measures around those various categories of
critical, major and minor. Again, as we explained a moment ago, we documented
what we observed on the basis of the departmental record and the relevant
records that we acquired from the contractors. We did not do a further
investigation to look behind the record, if I could put it that way.[37]

Children

Introduction

1.76
Nauru has never been an appropriate or safe place for refugee and asylum
seeker children. By placing refugee and asylum seeker children on Nauru the
Australian government knowingly exposed and continues to expose children
extremely elevated risk of assault, sexual assault, neglect, disease and
injury.

1.77
The Royal Australasian College of Physicians (RACP) highlighted that
despite the increased risk to children in detention there is no clear or
consistent framework in place to protect them.[38]

1.78
The Australian Greens are concerned that the conditions on Nauru limit
the access of refugee and asylum seeker children to education and do not
address the specific and complex needs of refugee and asylum seeker children.

1.79
The Committee heard that when the Regional Processing Centre (‘RPC’) at
Nauru was first established there were no formalised or complete child
protection frameworks on the island.

1.80
When the Nauru RPC was first established, the situation at the time was
described by Ms Amy Lamoin, Head of Policy and Advocacy, UNICEF Australia as
completely inadequate for the protection of both Nauruan and refugee and asylum
seeker children.[39]

1.81
The Australian Greens are concerned that asylum seeker children have
been put at risk due to the Government’s harmful actions and that the ability
for child advocates such as Save the Children to operate on Nauru has been
greatly restricted.

Senator McKIM: Okay, thanks. When your contract expired, were
there changes in eligibility requirements that prevented you from reapplying?

Mr Tinkler: Yes, there were two things done. The first thing
was the government grouped what was called 'garrison and welfare services', so
that effectively meant that the contract for services to establish security and
infrastructure run by Transfield Services and Wilson Security was grouped with
child protection and education welfare support. In practice, that made Save the
Children ineligible to apply because we do not run security.

Senator McKIM: Because you did not have capacity in that
area?

Mr Tinkler: Right. The second thing, more substantively, was
the tender requirements were changed so that only a company limited by shares
could tender for the work. An NGO, by definition, is not limited by shares and
therefore could not tender directly. So we could bid for contracts, and we did,
with a private sector partner, but only as a subcontractor in that arrangement,
which was far from ideal because we lost our direct reporting line to the
government.

Senator McKIM: Are you able to inform the committee whether
you were successful?

Increased risk of assault, sexual
assault and neglect

1.82
The Committee heard evidence that the conditions on Nauru placed
children at higher risk of sexual assault. The RACP submitted:

In held detention, children cannot be protected from and are
exposed to physical violence and mental distress in adults, including their
parents. They are likely to be at significant risk of physical and sexual abuse
and maltreatment, including neglect. These risks arise primarily as a result of
the detention environment, yet despite the risk, there remains no clear or
consistent child protection framework for children in Australian held
detention.[41]

1.83
Human Rights Watch conducted interviews with refugees and asylum seekers
and received information about multiple incidents of guards and other service
providers committing acts of violence against children.[42]

1.84
Ms McDonald, a volunteer at Love Makes a Way, told the Committee that a
father in detention in Nauru expressed anxiety about the safety of his child as
follows:

We always followed our toddler like a shadow to protect the
child from being sexually abused. This is the thing we were always worried
about. We heard that sexual abuse was happening in the compounds by guards. We
did not leave our child alone.[43]

1.85
The Committee heard evidence that complaints of abuse and neglect of
refugee and asylum seeker children have been mismanaged or ignored by
responsible authorities:

CHAIR: This touches on your characterisation of the child
protection framework or lack of it. More broadly, how would either Save the
Children or UNICEF characterise the complaints handling processes in relation
to criminal allegations on Nauru

Mr Tinkler: Our experience is that it is very poor. It has
been on the public record at numerous forums that there were a high number of
allegations of abuse and sexual assault. Ultimately, allegations of that nature
were referred to the Nauruan police. But our experience was that there was a
very low capability and expertise to effectively prosecute those kinds of
allegations. Indeed, there have been no successful prosecutions to date.

CHAIR: Is there any responsibility for the Department of
Immigration and Border Protection in those processes at all? You are contracted
to provide those services by Nauru who is in turn contracted to provide them by
the Department of Immigration and Border Protection; is that correct?

Mr Tinkler: Yes, there are responsibilities. For example, the
condition of detention—the living conditions and settings—lends itself to a
high preponderance of these kinds of acts. There are steps that can be taken to
prevent or mitigate these actions—for example, separation of offenders or
potential offenders from children. So the department had a responsibility to
follow up recommendations from child protection advisers inside the centre, for
example.

CHAIR: Did they follow those up?

Mr Tinkler: It varied. On occasion our recommendations were
accepted and on occasion they were not.[44]

1.86
The Australian Greens argue that given the evidence brought to the
Committee the Australian Government has failed to follow its obligations when
it comes to preventing child sexual abuse on Nauru.

1.87
The Castan Centre for Human Rights Law submitted that during the Royal
Commission into Institutional responses to Child Sexual Abuse:

Counsel assisting the Royal Commission acknowledged that
Australia is obliged to take all appropriate legislative, administrative,
social and educational measures to protect children from sexual and other forms
of abuse including measures for the prevention, identification, reporting,
referral, investigation, treatment and follow up of incidents of child abuse.[45]

Child health and development

1.88
The Committee heard evidence from multiple parties that holding children
in detention results in ‘unacceptable and extreme’ negative outcomes for their
health, mental health and development.[46]

1.89
The RANZCP submitted:

Detention is particularly detrimental to children’s physical
and mental health and has been shown to result in developmental regression and
delays, with the potential to cause long-term damage to their physical,
cognitive, social and emotional functioning.[47]

1.90
The RANZCP also explained that:

More than a third of children in detention centres have
serious mental health disorders compared with 2% in the Australian population.[48]

1.91
Short periods of detention can create risk to children’s functioning.
Long periods of detention create a 'high risk of suffering mental illness and
post-traumatic symptoms'.[49]

In some of our interviews with professionals we heard very
clearly that so much damage has already been done that for many of these
children it will take years to repair this damage, and that every further
month—let alone every year—that is spent on the island adds to this trauma, and
probably to the years that it will take to repair this trauma.[50]

1.93
Ten refugee and asylum seeker children on Nauru tested positive to
latent tuberculosis when given the Mantoux test for tuberculosis.[51]

1.94
The Committee heard that conditions the conditions on Nauru compound the
risk of a public health crisis. This would have a significant impact on
children’s health. Dr McLisky, of DFR, detailed this as follows:

Tuberculosis spreads in close, cramped, living conditions.
Children play together in close proximity, compounding the risk of a public
health crisis. The parasitic infestation schistosomiasis and the viral illness
dengue fever have also been diagnosed on Nauru. Transmission of these diseases
is increased by substandard accommodation, including a lack of reliable
plumbing on the island. There is a depth of literature detailing the long-term
psychiatric harm seen in children in prolonged detention.[52]

1.95
The Australian Greens agree with the proposition by the Commissioner for
Children and Young People Western Australia, that the appointment of an
Independent Legal Guardian ('ILG') for all children, including unaccompanied
minors, in detention should be progressed with immediately.

Schooling

1.96
Severe bullying, violence and harassment prevent many students from
attending local school in Nauru. Nauruan students commonly put students who do
attend school in physical and sexual danger.[53]

1.97
The Committee heard that transition of refugee and asylum seeker
children from a school run by Save the Children within the RPC to a school in
the Nauruan community was mismanaged.

1.99
Human Rights Watch estimate that, '85% of refugee and asylum seeker
children on Nauru are not enrolled in school'.[55]

1.100
Mr Tinkler, Director of Policy and Public Affairs at Save the Children
has stated:

We support that ambition because it is good to have kids
educated in the local community, but it is only useful if the appropriate
support is provided.[56]

1.101
Mr Tinkler argued that appropriate support for refugee and asylum seeker
children attending school in the Nauruan community was lacking. He suggested
the support that was missing to include:

english as a second language, tuition and instruction;

integration programs for students; and

teachers and the community around people from different cultural
backgrounds.[57]

Unaccompanied minors

1.102
As of 15 November 2016 there were 19 unaccompanied minors on Nauru. All
unaccompanied minors have been given an arbitrary date of birth of 31st of
December and the immigration determines when they are no longer classified
unaccompanied minors.[58]

1.103
The Australian Greens are concerned that 'under the Immigration
(Guardianship of Children) Act 1946 (Cth) the Minister for Immigration and
Border Protection is appointed the guardian of "non-citizen"
unaccompanied minors'.[59]

1.104
The Australian Greens take the view that the Minister for Immigration
and Border Protection is an inappropriate guardian for unaccompanied refugees
and asylum seekers.

1.105
The Australian Greens agree with Australian Lawyers for Human Rights
that:

the Minister has a conflict of interest in his role as a visa decision-maker
and as the person responsible for administering the detention regime; and

it is concerning that neither the Minister, nor those to whom powers are
delegated, are required to be equipped with specialist knowledge or experience
in relation to children.[60]

1.106
Australia is failing its duty to unaccompanied minors. The Commissioner
for Children and Young People Western Australia submitted that:

Australia has an obligation under the UN convention to
‘ensure alternative care’ for children who arrive unaccompanied, especially to
those seeking asylum. Australia must ensure children receive special protection
and assistance.[61]

1.107
Australian Lawyers for Human Rights have emphasised that the UNHCR
dictates that unaccompanied children should not be detained and their detention
cannot be justified on the basis of their migration status.[62]

Effect on families

1.108
Conditions on Nauru curtail the normal functioning of family life. The RANZCP
submitted that:

There are reports that RPCs have oppressive levels of
security that limit the freedom of detainees, undermine parenting and family
life, and are not natural environments. Families are subjected to intrusive
surveillance and monitoring limiting privacy.[63]

Children and international law

1.109
Australia has specific obligations to under international law as
signatories to UN Convention on the Rights of the Child (‘UNCRC’). By failing
to adequately protect the welfare of refugee and asylum seeker children on
Nauru Australia is failing to meet its obligations under this convention.

1.110
Article 7 of the UNCRC states all children have 'the right to acquire a
nationality'. And further that, 'parties shall ensure the implementation of
these rights in accordance with their national law and their obligations under
the relevant international instruments in this field, in particular where the
child would otherwise be stateless'.[64]

1.111
As many as 12 children born on Nauru are stateless.[65]
The Australian Greens are greatly concerned that these children are being
denied their right to a nationality. Such a denial would contravene Australia’s
obligations under the UNCRC.

1.112
Australian Lawyers for Human Rights argue that Australia is failing to
meet its obligations under the UNCRC regarding:

the right to be free from abuse, neglect and violence by their parents
or anyone else looking after them;

the right to be free from torture or cruel, inhuman or degrading
treatment or punishment;

the right to special help and protection as refugees;

the right to adequate health care, clean water, food and a
healthy environment; and

the right to be protected from activities that would harm their
development.[66]

International Law

1.113
Australia is obliged to protect the human rights of refugees and asylum
seekers under international law.[67]

1.114
The Australian Greens firmly believe that Minister Dutton should be
answerable for Australia’s ongoing breaches of international law.

1.115
In November 2013, the UNHCR held that Australia was acting
inconsistently with international law. Their findings were summarised in their
submission to the Inquiry as follows:

The 'policy and practice of detaining all asylum-seekers at
the detention centre referred to as the 'Regional Processing Centre', on a
mandatory and open-ended basis, without an individualised assessment as to the
necessity, reasonableness and proportionality of the purpose of such detention
amounts to arbitrary detention that is inconsistent with international law'.[68]

1.116
The Australia Council for International Development’s (ACFID) stated in
their submission to the Inquiry that:

The current policies of maintaining offshore detention
policies that have been shown to be in breach of international human rights
law. These policies present a significant risk to Australia’s international
reputation and strategic interests by impairing Australia’s ability to
influence global human rights issues, to influence regional respect for human
rights and for international law. Of timely importance, is the adverse impact
of these policies on Australia’s candidacy for a seat on the UN Human Rights
Council.[69]

1.117
The Australian Greens take seriously the international obligations owing
to refugees and asylum seekers and agree with the Australian Lawyers for Human
Rights submission that Australia 'cannot absolve itself of its responsibilities
towards asylum seekers and refugees by contracting out services to a third
party, nor can it absolve itself of responsibility by merely transferring
asylum seekers to Manus Island and Nauru'.[70]

1.118
The Australian Greens share the concerns of the UNHCR who submitted
that:

Since the Government of Australia’s announcement in 2012 that
it would recommence 'offshore processing', UNHCR has raised its concerns about
the offshore arrangements and the detrimental impact for those individuals who
would be affected by these arrangements, among other elements.[71]

1.119
Australia’s approach to refugees and asylum seekers is uniquely cruel.
The Australian Lawyers for Human Rights submission stated the following.

Australia is the only country to detain asylum seekers
indefinitely in jail-like conditions, including adults and children with severe
psychiatric impairment as well as those with identified developmental and
cognitive disabilities.

This represents a clear breach of Australia’s human rights
obligations and of the rights of these individuals (Newman et al., 2013).
Furthermore, the detention of children is in contravention of responsibilities
under the UN Convention on the rights of the child (1989), ratified by
Australia in 1990.[72]

1.120
The Australian Greens are particularly concerned about the detention of
minors on Nauru. The RANZCP submitted to the Inquiry that:

The Migration Act 1958 (Cth) contains a principle that a
minor shall only be detained as a measure of last resort. It has, however, been
a source of significant concern that children and their families and
unaccompanied minors continue to be subject to routine, prolonged and
indefinite detention, despite this legislation.[73]

Work health and safety

Commonwealth workplaces

1.121
RPCs in Nauru and Manus Island are Commonwealth workplaces. Comcare has
regulated RPCs for many years.

all 'detention centres' (and other workplaces) of the department are
Commonwealth workplaces; and

via section 12F(3), the Act has 'extended geographical jurisdiction' in
counties such as PNG and Nauru, that don’t have a law equivalent to the WHS
Act.

1.124
Comcare are notified of incidents that take place at RPCs. Submission 24
authored by the Australian Lawyers Alliance outlined that:

Due to the status of RPCs as Commonwealth workplaces,
notifications of abuse and self-harm must be made to Comcare, which in turn can
investigate the incidents and make recommendations to improve safety and
prosecute offences against the Work Health and Safety Act 2011 (Cth) (WHS Act).[75]

1.125
The Australian Greens agree with the submission of Mr Costello and Ms
McCorry that the WHS Act should be amended to make certain the applicability of
the Act to offshore Commonwealth workplaces. This would provide certainty and
remove doubt.

1.126
Mr Costello and Ms Mcorry suggest the adoption of a provision similar to
that prescribed by section 7 of the Border Force Act 2015 (Cth) which
reads as follows:

Primary duty of care

1.127
All Commonwealth workplaces owe duties of care that are prescribed by
the WHS Act.

1.128
The duties of care owed by the Commonwealth cannot be transferred or
contracted out.[77]
The Committee heard from Mr Costello, former prosecutor in health and safety
law and a former university lecturer in employment law that:

This statement we often hear that the duty to look after the
health and safety of the asylum seekers on Manus and Nauru belongs to the
governments of Papua New Guinea and Nauru is legal falsehood, demonstrably so,
prohibited by the act.[78]

1.129
The Committee heard from Mr Costello that pursuant to section 19 of the
WHS ACT the department has:

A primary duty of care to safeguard, so far as is reasonably
practicable, the health and safety—and health includes psychological health—of
both workers, that is section 19(1), and other persons, section 19(2). Those
other persons, at detention centres onshore and offshore, are the asylum
seekers.[79]

1.130
Mr. Costello argued the department has a proactive and preventative duty
to:

Look at all possible hazards and assess the risks, that is,
how likely they are to occur and, if so, how harmful they might be, and then,
if practicable, eliminate those risks or at least minimise them unless with a
particular risk the cost is grossly disproportionate.[80]

The scope of notifiable incidents

1.131
The Australian Greens have serious concerns that the current scope of
notifiable incidents under the WHS Act is both out-dated and too restrictive.

1.132
Section 38 of the WHS Act provides a duty to notify the regulator of a
defined number of ‘notifiable incidents’. The section provides that:

A person who conducts a business or undertaking must ensure
that the regulator is notified immediately after becoming aware that a
notifiable incident arising out of the conduct of the business or undertaking
has occurred.

Penalty

In the case of an individual--$10 000.

In the case of a body corporate--$50 000.

1.133
The Australian Greens agree with the submission of Mr Costello and Ms
McCorry that the phrase 'incident arising out of the conduct of the business or
undertaking' in section 38(1) of the WHA Act is too restrictive to adequately
respond to the harmful incidence occurring to people on the RPCs’ in Nauru and
Manus Island.[81]

1.134
The submission of Mr Costello and Ms McCorry noted:

Section 38 restrictively limits what’s notifiable.

For example, incident types... would presumably arise out of
the conduct of intruders.[82]

1.135
The Australian Greens agree with the position of the Australian Lawyers
Alliance regarding widening the scope of matters relevant to health and safety
reporting requirements.[83]

1.136
The 'notifiable incidents' that must be reported are defined in section
35 of the WHS Act to include:

the death of a person;

a serious injury or illness of a person; and

a dangerous incident.

1.137
Mr Costello and Ms McCorry submitted to the Inquiry that the definition
of notifiable incident is both narrow and industrial, stating:

The definition is relevant to (the shrinking proportion of)
manufacturing/primary and secondary industry/blue collar workplaces, but much
less so to (the steadily expending proportion of) tertiary/service
industry/white collar workplaces.[84]

1.138
For example a 'dangerous incident' is defined by section 37 of the WHA
ACT to include:

an uncontrolled escape, spillage or leakage of a substance;

electric shock;

an uncontrolled escape of gas or steam; and

the interruption of the main system of ventilation in an
underground excavation or tunnel.

1.139
For example a 'serious injury or illness' is defined by section 36 of
the WHA ACT to include:

immediate treatment as an in-patient in hospital;

immediate treatment for a serious head, eye or spinal injury etc;
and

medical treatment within 48 hours of exposure to a substance.

1.140
The Australian Greens are greatly concerned that psychological injuries,
rapes or serious sexual assaults, or even deaths that take place in certain
circumstances are not automatically or immediately notifiable.

1.141
The Australian Lawyers Alliance report Untold Damage argues that
the WHS Act should be amended to ensure a wider scope of matters are recognised
as relevant to health and safety reporting requirements.[85]
Suggested matters include:

all deaths, regardless of the circumstances in which the death
occurred;

serious sexual assault, sexual abuse and serious sexual
harassment;

all assaults of children;

bullying giving rise to a fear for safety;

psychological injury;

self-harm incidents;

series of serious injuries or illnesses that could be related;

any failure to identify, mitigate and eliminate risks to health
and safety posed by contractors, including failure to report incidents to the
DIBP or Comcare; and

the individual’s age, sex and any other characteristics giving
rise to vulnerability, with reporting requiring that these factors be
identified.

Reporting

1.142
The Committee heard that reporting of incidents to Comcare was often
haphazard, with incidents such as the self-immolation of two individuals not
being reported to Comcare.[86]

1.143
The Australian Greens share the concerns submitted to the inquiry by Mr
Costello and Ms Paddy that, 'reporting assaults and sexual assaults to police
is not required'.[87]
The Australian Greens agree that certain incidents warrant the notification of
police as well as the regulator.

1.144
The Australian Greens believe that amendments to the WHS Act are
necessary and that a broad interpretation of the types of injuries, illnesses
and incidents subject to investigation should be adopted.